Hasmukhalal Dahayabhai & Ors Vs.
State of Gujarat  INSC 166 (4 August 1976)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N. (CJ) SINGH, JASWANT
CITATION: 1976 AIR 2316 1977 SCR (1) 103 1976
SCC (4) 100
CITATOR INFO :
F 1977 SC 915 (11,19)
Constitution of India--Article 31A (1) Second
31B--Meaning of right conferred--9th
Schedule--Whether different ceiling can be imposed for different
persons--Whether second proviso to Art. 31A(1) imposes a fetter on the
legislative competence--Gujarat Agricultural Land Ceiling Act 1961 (Gujarat Act
27 of 1961)---Section 2(21), 6.
General Clauses Act 1897---Section
3(42)--Meaning of person--Whether legislature bound to follow definition in
General Clauses Act.
The appellants challenged the constitutional
validity of the Gujarat Agricultural Land Ceiling Act 1961 by filing writ
petitions in the High Court of Gujarat. The Preamble of the Act state that the
Act was enacted for Securing the distribution of agricultural land as best to
sub-serve the common good. Section 6(1) of the Act provides that no person
shall hold either as owner or tenant land in excess of the ceiling area.
Section 6(2) provides that where an individual who holds land as a member of a
family, not being a joint family, then the spouse. and the children excluding
major sons shall be grouped together for the purposes of the Act and the
provisions of the Act shall apply to the total land so grouped together as if
such land had been held by one person. The ceiling area is fixed depending on
the classes of land, nature of irrigation facilities and productivity.
The said statute has been put in the 9th
Schedule by the Parliament. The Gujarat High Court dismissed the writ petitions
filed by the appellants but granted certificate of fitness under Art. 133(1) of
the Constitution to the appellant.
The appellants contended that (1).Second
proviso to Art.
31A of the Constitution provides that where
any law makes provision for the acquisition by the State of any estate which is
held by a person under his personal cultivation, it shall not be lawful for the
State to. acquire any portion of such land as is within the ceiling limit
applicable to him under any law for the time being in force unless the law
provides for payment of compensation at a rate which is not less than the
market value. Apart from variations in the ceiling area imposed by a statute,
there cannot be a deprivation of rights of individuals holding property
separately in exercise of their separate individual rights by grouping them as
members of one family.
(2) The concept 017 "person"
adopted by the statute is unnatural and legally untenable. The concept of the
term 'person' having been fixed by the Central General Clause Act, this concept
and no other must be used for interpreting second proviso to Art. 31A of the
(3) The second proviso to Art. 31A(1) does
not confer any right upon any person but only imposes a limit upon legislative
competence so that the inclusion of the Act in the' 9th Schedule will not
validate a provision which the Legislature was' not competent at all to enact.
HELD: The term 'person' is not defined in
Section 2(21 ) merely states that person
includes a joint family Under s 3(42) of the General Clauses Act 1897, a person
is defined as. including any company or association or body of individuals
whether incorporated or not. In the absence of s. 6(2) each individual member
of a family would have been entitled to hold land up to the ceiling limit if it
was his or her legally separate property. The Act does not debar spouses and
minor children from holding their separate. rights to land. There is no fixed
concept of 'person' anywhere. Section 6(2) does not either disable a husband or
a wife from holding their separate properties separately.
It does not merge or destroy their separate
legal personalities. It 104 merely requires their separate holdings to be
grouped together as though they were held by one person only for the purpose of
determining the ceiling limit Each, holder of such separate rights above the
ceiling limit is permitted to select the property he or she wishes to continue
to hold in such a way that the lands selected for such continuance shall be in
the same proportion in which lands were held by each spouse. The reduction in
their holding will, therefore, be proportionate to the areas' of lands held
separately. But, they are grouped together only for the purpose of determining
the ceiling limit for the fan, and, as a result of a specific provision to that
effect. It is not denied by the appellants that the ceiling limit could have
been lowered by the statute. Article 31A does not prohibit the legislature from
fixing ceiling limits for various individuals or the classes of individuals
differently situated, nor does the second proviso to Art. 31A(1) prescribe any
particular or direct mode of imposing different ceilings for individuals
differently circumstanced. [106 G-H, 109 A-E] Pritam Singh v. State of Punjab
& Ors.  (2) S.C.R. 536 distinguished.
(2) Article 3lB provides a complete answer to
any attack directed against the provisions of the Act based upon violation of
any of the rights conferred by the provisions of Part III of' the Constitution.
To read any limit into the second proviso to Art. 31A(1) that there can be only
single ceiling limit for all persons would be to accept a novel restriction on
legislative competence. There is nothing in the Constitution to bar any statute
from receiving a dual protection. In the. present case, the statute in question
is fully protected by Art. 3lB. Since the second proviso to Article 31A confers
certain rights up.on individuals, the protective umbrella of Art. 3lB shields
the impugned provision against any attack based upon the alleged violation of
such rights as well. [110 G-H, 111 A-C] (3) There is no question of legislative
competence. in the present case. The proviso protects and confers certain
rights upon individuals to an amount of compensation. That is the direct
effect. [111 B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 374-375 & 457-462 of 1976.
(From the Judgment and order dated 12-3-76 of
the Gujarat High Court in S.C.A. Nos. 1784/73 and 650/74, 1125, 1118, 1123,
1124, 1835, 1836/74 respectively.) A.K. Sen, S.J. Sorabjee, M.V. Chinubhai and
B.R. Agarwala, for the appellants in CAs 374-375/76.
S.J. Sorabjee, Mrs. Chinubhai, S.H.
Sanjanwala, P. H.
Parekh and Miss Manju Jetley, for the
appellants in CAs 457-462/76.
J.M. Thakere, Adv. General, J. P. Nanavati
Shroff, for respondent No. 1 in all the
The Judgment of the Court was delivered by
BEG, J. The eight Civil Appeals before us by certificates of fitness of the
cases for appeals to this Court raise common questions involving the
interpretation of Articles 31A and 3lB of the Constitution of Indian relation
to the Gujarat Agricultural Land Ceiling Act XXVII of 1961 (herein-after
referred to as 'the Act').
The preamble of the Act says that it was
"xxx it is expedient in the public
interest to make a uniform provision for the whole of the State of Gujarat in
respect of restrictions upon holding agricultural land in excess of certain
limits and it is also expedient for so securing the 105 distribution of
agricultural land as best to sub serve the common good to provide for the
acquisition of surplus agricultural land for the allotment thereof to persons
who are in need of lands for agriculture (including cooperative farming societies,
landless persons, agricultural labourers and small holders) or for the
allotment of such surplus agricultural lands the integrity of which is maintained
in compact blocks to a department of Government or to cooperative farming
societies or corporations owned or controlled by the State, for ensuring the
full and efficient use thereof and to provide for other consequential and
incidental matters hereinafter appearing?" The part of section 6 of the
Act with which we are especially concerned provides:
"6(1) Notwithstanding anything contained
in any law for the time being in force or in any agreement, usage or decree or
order of a Court, with effect from the appointed day, no person shall, subject
to the provisions of sub sections (2), (3), (3A) and (3B) be entitled to hold,
whether as owner or tenant or partly as owner and partly as tenant land in
excess of the ceiling area.
(2) Where an individual, who holds land, is a
member of a family, not being a joint family which consists of the individual
and his spouse (or more than one spouse) and their minor sons and minor
unmarried daughters, irrespective of whether the family also includes any major
son, and land is also separately held by such individual's spouse or minor children,
then the land held by the individual and the said members of the individual's
family, excluding major sons, if any shall be grouped together for the purposes
of this Act and the provisions of this Act shall apply to the total land so
grouped together as if such land had been held by one person.
(3) xxx xxx xxx (3A) xxx xxx xxx (3B) Where a
family or a joint family consist of more than five members comprising a person
and other members belonging to all or any of the following categories, namely
:-(i) Minor son, (ii) widow of a pre deceased son, (iii) minor son or unmarried
daughter of a pre-deceased son, where his or her mother is dead, Such family
shall be entitled to hold land in excess of the ceiling area to the extent of
one-fifth of the ceiling area for each member in excess of five, so however
that the total holding of the family does not exceed twice the ceiling area;
and, 9--1003 SCI 176 106 in such a case, in relation to the holding of such
family, such area shall be deemed to be the ceiling area:
Provided that if any land is held separately
also by any member of such family, the land so held separately by such member
shall be grouped together with the land to such family for the purpose of
determining the total holding of such family:
Provided further that where. in consequence
of any member of such family holding any land in any other part of India
outside the State, the ceiling area in relation to the family is reduced as provided
in sub-section (3A), the one-fifth of the ceiling area as aforesaid shall be
calculated with reference to the ceiling area as would have been applicable had
no such land been held by such member in any other part of India.
(3C) Where a family or a joint family irrespective
of the number of members includes a major son, then each major son shall be
deemed to be a separate person for the purposes of sub-section ( 1 ) ".
In accordance with the provisions of Sections
4 and 5 of the Act, classes of land, nature of irrigation facilities provided
there, and the ceiling area for each particular class of land in each locality
were specified in Schedule I.
This is found classified in nine local areas.
The range of ceiling limit varies from 10 acres to 54 acres, according to the
irrigation facilities and quality of land, the ceiling for less productive and
less advantageously situated land being higher.
The question which has been raised before us
is whether, apart from variations in the ceiling area imposed by statute, there
can be a depriviation of rights of individuals holding property separately, in
exercise of their separate individual rights, by grouping them as members of
one family so as to compel them to take only one unit of land' in such a way
that their total holding does not exceed the ceiling limit which is the same
for both individuals as well as families as defined by the Act with some
allowances for large families. This raises a further question: What is the unit
for which this ceiling is prescribed? It is evident that Section 6 conceives of
each "person" holding land as a single unit whose holding must not
exceed the ceiling limit. Section 2, sub-s. (21) says: "'person' includes
a joint family;". Thus, the term "person" is not, strictly
speaking, defined in the Act. Section 2, sub-s. (21) only clarifies that the
term "person" will "include" a joint family also. It
certainly does not exclude an individual from being a person in the eyes of
This has been done apparently to make it
clear that, in addition to individuals, as natural persons, families, as
conceived of by other provisions, can also be and are persons. This elucidation
of the term "person" is in keeping with Section 3 (42) of the General
Clauses Act, 1897, which lays down:
" 'person' shall include any company or
association or body of individuals, whether incorporated or not".
107 We have referred to the Central General
Clauses Act 10 of 1897 and not to the State General Clauses Act, which also
contains a similar clarification, because Article 367 of our Constitution
provides that the definitions contained in the Central Act "apply for the
interpretation of the Constitution". The argument which has been advanced
before us is that the concept of the term "person", having been fixed
by the Central General Clauses Act, this concept and no other must be used for
interpreting the second proviso to Article 31A of the Constitution which lays
"Provided further that where any law
makes any provision for the acquisition by the State of any estate and where
any land comprised therein is held by a person under his personal cultivation,
it shall not be lawful for the State to acquire any portion of such land as is
within the ceiling limit applicable to him under any law for the time being in
force or any building or structure standing thereon or appurtenant thereto,
unless the law relating to the acquisition of such land, building or structure,
provides for payment of compensation at a rate which shall not be less than the
market value thereof".
As no argument based on Articles 14 and 19 is
open to the appellant, the Act under consideration having been included in the
9th Schedule to the Constitution, the ground now taken is that Section 6,
subsection (2) of the Act, set out above, contains a colourable device for
getting round the limitations on legislative power imposed by the second
proviso to Article 31A(1) of the Constitution. It is urged that this is done by
adopting an unnatural and legally untenable concept of a "person"
which transpires from an analysis of Section 6 of the Act.
It is true that, but for the provisions of
Section 6, sub.s.(2) of the Act, the term "person", which includes
individuals, as natural persons, as well as groups or bodies of individuals, as
artificial persons, such as a family is, the entitlement to the ceiling area
would be possessed by every person, whether artificial or natural. In other
words, if Section 6(2) of the Act was not there, each individual member of a
family would have been entitled to hold land upto the ceiling limit if it was
his or her legally separate property. This follows from the obivous meaning of
the term "person" as well as the inclusive definitions given both in
the Act under consideration and in the General Clauses Act.
Spouses and minor children, as natural
persons, have not been debarred from holding their separate rights to land by
the provisions of the Act. It is not the object of the Act to do that. The object
of the Act, as set out above, is twofold: firstly, to limit the ceiling area of
and, secondly, to acquire what falls beyond
the ceiling limit so that the State may distribute it to more needy persons. It
is not disputed that compensation is provided for acquisition of what exceeds
the ceiling area in every case. As was held by this Court in H.H. Kesavananda
Bharati Sripadagalavaru v. State of Kerala,(1) the amount of compensation fixed
can not be questioned. Therefore, no  Supp. S.C.R. 1.
108 provision of the Act could be or is
challenged on the ground that the required compensation is not prescribed for
an acquisition under it as required by Article 31(2) of the' Constitution or is
inadequate. Article 3lB of the Constitution seems to us to provide a complete
answer to any attack directed against the provisions of an Act based upon an
alleged violation of any of the rights conferred by the provisions of Part III
of the Constitution. It reads:
"3lB. Without prejudice to the generality
of the provisions contained in Article 31B, none of the Acts and Regulations
specified in the Ninth Schedule nor any of the provisions thereof shall be
deemed to be void, or ever to have become void, on the ground that such Act,
Regulation or provision is inconsistent with, or takes away or abridges any of
the rights conferred by, and provisions of this part, and notwithstanding any
judgment, decree or order of any court or tribunal to the contrary, each of the
said Acts and Regulation's shall, subject to the power of any competent
Legislature to repeal 'Or amend' it, continue in Force".
Learned Counsel for the petitioners concede
that, in view of the decision of this Court in H.H.
Kesavananda.Bharti's case (supra) and other
cases referred to there, it is not possible to assail the provisions. of
Section 6 of the Act on the ground that they take away or abridge any-right.
conferred by Part III of the Constitution on individuals, But, what they urge
is that the second proviso to Article 31A(1)does not confer any right upon any
person but only imposes, a limit upon the Legislative competence to that the
inclusion of the Act in the 9th Schedule will not validate a provision which a
legislature was not competent it all to enact. Such a provision, it was submitted,
will not be protected by Article 3lB of the Constitution. The contention is
that Article 3lB does not protect a provision from invalidity on the ground of
legislative incompetence of the legislature enacting it.
We do not think that the ease before us
raises any question of legislative competence of the nature which could arise
if a State Legislature had tried to trespass upon the exclusive domain of Union
Legislation. What has been urged is simply that the second proviso to Article
31 (1) disables the State Legislature from acquiring any land below the ceiling
limit without providing for compensation for such acquisition at the full
market value. The proviso certainly protects, and, indeed, confers certain
rights upon individuals to an amount of compensation. That is its direct
The argument on behalf of the appellant, as
we understand it is that, although, an alteration of the ceiling limit for each
"person" directly by prescribing its stautory limit is permissible,
yet, if it is not done directly by changing the ceiling limit for each person
but by introducing a concept of "person", contrary to the concept in
the provisions of the second proviso to Article 31 A( 1 ), it becomes a
prohibited colourable device for getting round the second proviso to Article
31A(1). It is urged that the effect of the amended Section 6 of the 109 Act is
to change the ceiling limit for some persons only by altering the legal and
constitutional concept of a person.
We do not find any fixed concept of
No .doubt the concept is wide so that it
could be contended that it should not be narrowed down or confined, But does
Section 6 (2) do that? Section 6 (2) does not either disable a husband or wife
from owning or holding their separate properties separately. It does not merge
or destroy their separate legal personailties. It requires their separate
holdings to be grouped together as though they were held by one person only for
the purpose of determining the ceiling limit for each member of a family. It
may indirectly have the effect of disabling a member 'of a family from holding
land upto the prescribed ceiling limit for a person holding as an individual.
In other words, the result is that such a member of a family will have to be content
with a holding less than that of an unmarried individual. It has the effect of
making it clear that what have to be grouped together are the separate
properties of individuals belonging to families other than what are "joint
families", in law. It takes in and applies to members of families other
than undivided Hindu families. It means that married persons and their minor
children will have to be viewed as though they hold one lot together even
though they retain their separate legal personalities and remain competent
owners of their separate holdings. It does not affect either their legal status
or competence. It does reduce their individual holdings. But, we do not find
any prohibition enacted by the second proviso to Article 31A(1) against different
ceiling limits prescribed for various individuals or classes of individuals
differently situated. Nor does the second proviso to Article 31A(1) prescribe
any particular or direct more of imposing different ceilings on individuals
A glance at the provisions of Section 20 of
the Act shows that separate rights to properties grouped together for purposes
of computation only do not vanish. On the other hand, each holder of such
separate rights above the ceiling ,limit is permitted to select the property he
or she wishes to continue to hold in such a way "that the lands selected
for such continuance shall be in the same proportion in which lands held by
each spouse before furnishing the relevant statement were under sub-section (1)
10. The reduction in their holdings would,
therefore, be proportionate to the areas of lands held separately but' brought
together only for the purposes of determining the:
ceiling limit for the family. The whole
object of the process prescribed seems to be that families, as contemplated by
the Act, should be units for merely determination of ceilings for each member
of a family.
Appellants relied on Kunjukutty Sahib etc.
etc. v. State of Kerala & Anr.(1) where it was held by this Court (at p.
"It was not disputed that the ceiling
limit fixed by the amended Act was within the competence of the legislature to
fix; nor was it contended that the ceiling fixed by the original unamended Act
by itself debarred the legislature from further (1)  1 S.C.R.326 @ 341.
110 reducing the ceiling limit so fixed.
Prior to the amendment undoubtedly no land within the personal cultivation of
the holder under the unamended Act within the ceiling limit fixed thereby could
be acquired without payment of compensation according to the market value, but
once ceiling limit was changed by the amended Act the second Proviso to Art.
31A (1) must be held to refer only to the new ceiling limit fixed by the
amended Act. The ceiling limit originally fixed ceased to exist for future the
moment it was replaced by the amended Act. The prohibition contained in the
second proviso operates only within the ceiling limit fixed under the existing
law, at the given time. It is true that the new ceiling limit was fixed
contemporaneously with the acquisition of the land in excess of that ceiling
limit. But it was not contended that a law so fixing the ceiling limit and
acquiring the land in excess would offend any provision of the Constitution".
Pritam Singh v. State of Punjab & Ors.(1)
was also cited on behalf of the appellants. Here the contention, amongst
others, was repelled that, by adding land transferred to certain relations to
that held by a person under his personal cultivation, for the purpose of determining
his ceiling area and the surplus left, under the provisions of the Pepsu
Tenancy and Agricultural Lands Act, 1955, as amended by a subsequent Act,
rights guaranteed by the second proviso to Article 31A(1) were contravened.
This case certainly does not lay down that the ceiling limit applicable to each
individual must be uniform or that it must be contained in a single statutory
provision directly dealing with ceiling limits. It follows that the ceiling
limit may vary from individual to individual. These varying limits may result
from the combined effect of several provisions. The prescription of different
ceiling limits for different individuals, differently circumstanced, could be
enacted directly by a single provision dealing with individual celling limits,
or, alternatively, it could be the consequence of several provisions dealing
with differing sets of circumstances. No law known to us has ever laid down
that the intention of the law makers on a particular subject must necessarily
transpire from a single statutory provision or statutory provisions dealing
directly with a particular aspect. To read any such limit into the 2nd proviso
to Article 31A(1) of the Constitution would be to accept a novel restriction on
legislative competence. We have no doubt that no such restriction could be
found in the 2nd proviso to Article 31 A ( 1 ) of the Constitution.
It was urged that Article 31A(1) and 3lB of
the Constitution operate in different fields of legislation. Whereas Article 3
IA( 1 ) cures certain possible invalidities in ordinary legislation, arising
from its. inconsistencies with Articles 14 or 19 or 31 of the Constitution,
Article 3lB cures a wider range of infirmities arising from conflict with any
of the provisions of Part III of the Constitution and necessitates a
constitutional amendment so as to protect an impugned legislation by its
inclusion in the 9th Schedule to the Constitution. Legislation protected (1)
 2 S.C.R.p. 536.
111 by Article 31A of the Constitution would
fall under appropriate legislative entries in the 7th Schedule. But, to secure
the protection of Article 3lB of the Constitution, resort to the provisions of
Article 368 of the Constitution is imperative. These differences do not mean
that legislation falling under any part of Article 31A(1) of the Constitution,
including the provisos, cannot receive also the protection contemplated by
Article 3lB of the Constitution.
There is nothing in our Constitution to bar
any statute from receiving a dual protection, so to speak, of both Article
31A(1) and 3lB of the Constitution if the conditions of each are satisfied.
It is clear to us that the proviso to Article
31A(1) of the Constitution confers certain rights upon individuals and protects
them from -constitutionally illegal invasion. We are, therefore, unable to
accept the argument advanced on behalf of the appellants that the
"protective umbrella" of Article 3lB does not shield the impugned
provisions ,against an attack based upon the limits imposed by the second proviso
to Article 31A(1) on legislative power. The argument overlooks certain obvious
answers: firstly, that limits on legislative powers, imposed by Part III of the
Constitution, do have the direct result of protecting individual rights;
and, secondly, that no part of the second
proviso to Article 31 (1) of the Constitution was, as already pointed out
above, infringed by the impugned provisions; and, thirdly, even if one were to
assume, for the sake of argument, that rights conferred on individuals 'by the
2nd proviso to Article 31 (1), were infringed in any way, provisions of Article
3lB of the Constitution are enough to repel an attack based upon such an
alleged infringement. Both Article 31A(1) and 3lB are intended to operate as
protections against consequences of what could otherwise be breaches of the
Consequently, we have to and do dismiss these
But, in the circumstances of the case, the
parties will bear their own costs.
P.H.P. Appeals dismissed.